Transit passage through the Malacca and Singapore Straits
Mariko Kawano*
1. Introduction
The Straits of Malacca and Singapore (hereafter referred to as the ‘SOMS’) are important sea lanes for Japan particularly as regards the transport of energy resources from the Middle East and there is a long history of cooperation between Japan and the States bordering them.1 The SOMS also hold a pivotal place in Japan’s Strategy of a ‘Free and Open Indo-Pacific’.2 Part III of the United Nations Convention on the Law of the Sea (UNCLOS) establishes a specific regime in relation to the straits for international navigation and transit passage. The SOMS are two of the most important straits used for international navigation and they are some of the busiest straits in the world. After Indonesia, Malay- sia, and Singapore respectively obtained independence, a mechanism to facilitate and promote international cooperation was established. In par- ticular, because of the importance of these States, Japan started to assist the region as early as the 1950s by establishing a mechanism for aid and assistance. Since the 1980s, the situation regarding the SOMS have
* Professor of International Law, School of Law, Waseda University (Japan). 1 In this article, the term ‘States bordering a strait’ is used to signify the littoral States of a strait used for international navigation. It is true that this term is one newly introduced by the UNCLOS. However, to simply and unify the expression, this term is used from the beginning and throughout. 2 Japan has pursued the ‘Free and Open Indo-Pacific Strategy’ since the former Prime Minister Abe advocated it in 2016. This is a policy emphasizing the importance of achieving a free and open maritime order based on the rule of law in the Indo-Pacific region, stretching from the Asia-Pacific through the Indian Ocean to the Middle East and Africa, Diplomatic Bluebook 2019
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36 QIL 76 (2020) 35-58 ZOOM IN changed. The UNCLOS was adopted in 1982 and the economic and stra- tegic importance of the SOMS has become even more important because of the significant development of the Asian economy and the increase of tension in the maritime areas which the SOMS connect. This article firstly provides a brief overview of the regime of the straits used for interna- tional navigation under the UNCLOS and, then, explains the historical development of the mechanism for international cooperation in relation to the SOMS which has been in place since the 1950s, as well as its de- velopment following the adoption and entry into force of the UNCLOS. It also takes up salient contemporary issues relating to the SOMS.
2. Geographical features of the SOMS
The SOMS are located between Sumatra and the Malayan Peninsula and they serve as a major international route linking the Indian Ocean with the South China Sea. The straits are 500 miles long and vary in width from 10 miles to 220 miles. The navigable channel also varies in width and is, at best relatively narrow and shallow. Consequently, navigation is quite difficult and these straits present certain hazards. 3 While these straits constitute one of the critical sea lanes connecting Europe, the Mid- dle East, and East Asia, the shallow waters, complex and erratic tides, currents and unpredictable wind shifts make these straits one of the most challenging places for international trade and commerce, ultimately rep- resenting a choke point for navigation. The safety and freedom of navi- gation and the prevention, regulation, and control of marine pollution there is critical to all major trading States in the world. Bilateral treaties have been concluded for the delimitation of the ter- ritorial seas, although not all disputes concerning the sovereignty over maritime features and the delimitation of the territorial seas have so far been settled.4 In terms of treaties, there is between Indonesia and Malay- sia, the Treaty relating to the Delimitation of the Territorial Seas in the
3 YYI Vertzberger, Coastal States, Regional Powers, Superpowers and the Malacca- Singapore Straits (Institute of East Asian Studies 1984) 4. 4 ibid 4827. The dispute concerning the Pedra Branca and other maritime features was referred to the International Court of Justice by the Special Agreement between Malaysia and Singapore. After the Judgment of 2008, Malaysia requested that the Court provide an interpretation of that Judgment. The Parties agreed to discontinue the
Transit passage through the Malacca and Singapore Straits 37
Strait of Malacca of 17 March 1970;5 between Indonesia and Singapore, the Agreement Stipulating the Territorial Sea Boundary Lines in the Strait of Singapore of 25 May 1973;6 between the three States bordering the SOMS (hereafter referred to as the ‘SOMS States’), the Treaty Relat- ing to the Delimitation of the Territorial Seas in the Western Part of the Strait of Singapore of 10 March 20097 and the Treaty Relating to the De- limitation of the Territorial Seas in the Eastern Part of the Strait of Sin- gapore of 3 September 2014.8
3. UNCLOS and the SOMS
The SOMS States and most user States are State Parties to the UNCLOS. Moreover, although the United States is not a State Party to it, it was involved in the drafting process of the provisions of Part III of the UNCLOS. The international navigation regime provided by the UNCLOS in relation to the straits plays the most important role in any arguments regarding legal issues concerning the SOMS. That regime is prefaced with a special reference to the freedom and safety of navigation and the protection and preservation of the marine environment, which are the principal concern of both SOMS States and user States.
3.1. Purpose of Part III of the UNCLOS
In the 1950’s when coastal States started claiming extensions of the breadth of the territorial seas, the major maritime States, in particular, the United States and the former Soviet Union became concerned with the loss of the high seas in many channels and straits. When the consul- tation for convening the Third United Nations Conference on the Law of the Sea started, these two States commenced their attempts to ensure
proceedings [2018] ICJ Rep 289. However, it has not been reported that the dispute between them has been settled. 5 This Treaty entered into force on 8 October 1971. JI Charney, LM Alexander (eds), International Maritime Boundaries vol 1 (Martinus Nijhoff 1993) 1029-1037. 6 This Agreement entered into force on 29 August 1974 ibid 1049-1056. 7 This Treaty entered into force on 30 August 2010. CG Lathrop (ed), International Maritime Boundaries vol 7 (Brill 2016) 4813-4825. 8 This Treaty has not entered into force, ibid 4827-4837.
38 QIL 76 (2020) 35-58 ZOOM IN the freedom of passage for ships and the freedom of flight for aircraft of all countries in these straits in which parts of the high seas would be lost as a result of the extension of the breadth of the territorial sea.9 Conse- quently, Part III of UNCLOS was adopted in step with the extension of the breadth of the territorial seas in Article 3 and sets out the rules con- cerning a new right of transit passage in straits used for international nav- igation.10
3.2. Rules concerning the transit passage in Part III
Article 37 provides that Part III, Section 2, ‘applies to straits which are used for international navigation between one part of the high seas or an exclusive economic zone and another part of the high seas or an ex- clusive economic zone’. It is true that this provision lacks any precise def- inition of the term ‘strait’,11 the SOMS seem to be considered to fall within the scope of the notion of straits used for international navigation in accordance with Article 37 and Article 38 concerning the right of transit passage enjoyed by all ships and aircraft. The States bordering a strait are under an obligation not to hamper transit passage and there shall be no suspension of transit passage under Article 44.12 In exercising the right of transit passage, ships and aircraft are re- quired to comply with the duties provided by Article 39, paras 1 and 2. Ships in transit passage are also under an obligation to ‘(a) comply with generally accepted international regulations procedures and practices for safety at sea, including the International Regulations for Preventing Col- lisions at Sea’ and to ‘(b) comply with generally accepted international regulations, procedures and practices for the prevention, reduction and control of pollution from ships’.
9 B Bing Jia, The Regime of Straits in International Law (OUP 1998) 130-135. 10 ibid 136-137. 11 ‘“Strait” is not a term of art, and it is not defined in any of the conventions produced by the Third United Nations Conference on the Law of the Sea. It bears its ordinary meaning, describing a narrow natural passage or arm of water connecting two larger bodies of water’, RR Churcill, AV Lowe, International Law of the Sea (2nd edn, Manchester UP 1989) 102. 12 A Proeless (ed), United Nations Convention on the Law of the Sea: A Commentary (Brill 2017) 289-290.
Transit passage through the Malacca and Singapore Straits 39
Under Article 41, the State bordering the straits may designate sea lanes and prescribe traffic separation schemes (hereafter referred to as ‘TSSs’) for navigation in the straits where it is necessary to promote the safe passage of ships. States bordering straits are not permitted free reign in designating sea lanes and prescribing TSSs because the sea lanes des- ignated and the TSSs prescribed are required to conform to the generally accepted international regulations (para 3). States bordering straits are also required to refer proposals to the competent international organiza- tion with a view to their adoption before designating or substituting sea lanes or prescribing or substituting TSSs (para 4). In accordance with Article 42, the right of the State bordering straits to adopt laws and reg- ulations relating to transit passage is restricted to certain matters, includ- ing ‘(a) the safety of navigation and the regulation of maritime traffic as provided’ in Article 41, and (b) the prevention, reduction and control of pollution, by giving effect to applicable international regulations regard- ing the discharge of oil, oily wastes and other noxious substances in the strait’. The scope of this right of the State bordering a strait is more lim- ited than that of the coastal State in terms of the laws and regulations concerning innocent passage. It is reasonable to say that the rights and jurisdiction of the State bor- dering a strait are more restricted than those of the coastal State in rela- tion to the innocent passage. The basic approach of Part III is to ensure the freedom of navigation under the title of transit passage by allowing the States bordering a strait to ensure the safety of navigation and the prevention, regulation, and control of pollution in the strait concerned, in accordance with the relevant international rules. The obligation of the State bordering a strait not to hamper transit passage under Article 44 is stricter than that concerning the innocent passage.13 The last feature of the regime of the straits used for international nav- igation is reflected by Article 43, which seeks to ensure the balance be- tween the interests of the States bordering straits and those of the user States. The purpose of such cooperation is to ensure that necessary navi- gational and safety aids or other improvements of aids to navigation (hereafter referred to as ‘AtoN’) are in place and to the prevent, reduce
13 H Caminos, ‘The Legal Régime of Straits in the 1982 United Nations Convention on the Law of the Sea’ (1987) 205 Recueil des Cours de l’Académie de Droit International 9, 146-147.
40 QIL 76 (2020) 35-58 ZOOM IN and control pollution from ships. It should be noted that Article 43 does not impose any obligation to cooperate by agreement nor to enter into agreement and that while specifying the objectives of cooperation, it does not set out the means or the steps to ensure its concrete implementation. In terms of the mechanism for cooperation, the question of burden sharing and the right of the SOMS States to charge fees may be matters for concern.14 Although Part III lacks a provision like Article 26, Cami- nos and Cogliati-Bantz point out that while ‘Article 43 per se does not emasculate the ability of the coastal State to charge for specific services’, what it ‘purports to achieve is to find means, notably financial arrange- ments, to ‘temper, through cooperation, the financial impact of the gen- eral obligation of states bordering straits […] to give warnings to passing ships of danger to navigation’; it also attempts to get all interested States together in the adoption and funding of mechanisms that ensure the high- est possible level of safety in the interest of all’. They also state that the extent and means of cooperation depend on each strait.15 It should be noted that the measures to ensure the safety of navigation include dredging, removing wrecked vessels and maintaining oil skim- ming vessels, which cannot be covered by the charge for ‘specific ser- vices’. As the maintenance of the safety of navigation in the straits re- quires the States bordering them to incur a financial burden, the argu- ments for international cooperation cannot avoid the need to establish a mechanism to share the financial burden of the international cooperation in accordance with Article 43.
3.3. Regime of the transit passage and the protection and preservation of the marine environment
As major accidents have caused environmental damage in the SOMS because of the difficulties of navigation there and the large size of tankers, the protection and preservation of the marine environment has been one of the major concerns of the SOMS States since as early on as the drafting process of the UNCLOS. Environmental protection issues in the SOMS
14 H Caminos, VP Cogliati-Bantz, The Legal Regime of Straits: Contemporary Challenges and Solutions (CUP 2014) 371-373. 15 ibid 373-379.
Transit passage through the Malacca and Singapore Straits 41 have been and are closely related to those concerning the safety of navi- gation and the prevention of accidents and the arguments focused on the enforcement jurisdiction of the States bordering straits. Article 42 is strict regarding the scope of the prescriptive jurisdiction of the States border- ing straits and Part III lacks any provision concerning the enforcement jurisdiction of those states. Moreover, Article 44 emphasizes the obliga- tion not hamper the transit passage. A provision concerning the enforce- ment jurisdiction of the States bordering straits was proposed in the con- text of the protection and preservation of the marine environment after the basic structure of Part III was consolidated. Consequently, while Ar- ticle 233 – which is located in Part XII concerning the protection and preservation of the marine environment – sets out the possibility for the States bordering straits to take enforcement measures, questions regard- ing the coherency and compatibility of Article 233 with Part III have been raised.16 Article 233 provides as follows:
‘Nothing in section 5, 6, and 7 affects the legal regime of straits used for international navigation. However, if a foreign ship other than those re- ferred to in section 10 has committed a violation of the laws and regula- tions referred to in Article 42, paragraph 1(a) and (b), causing or threat- ening major damage to the marine environment of the straits, the States bordering the straits may take appropriate enforcement measures and if so shall respect mutatis mutandis the provisions of this section’.
There have been different views with regard to the interpretation of this provision in relation to Article 42. The outstanding issues of the ar- guments are the ‘appropriate measures’ to be taken by the States border- ing straits and the meaning of ‘causing or threatening major damage to the marine environment of the straits’. The ‘appropriate measures’ by the States bordering straits are closely related to their obligation not to hamper the passage. Particularly, differ- ent views have been proposed on the question of whether those measures
16 BH Oxman, ‘Environmental Protection in Archipelagic Waters and International Straits – The Role of the International Maritime Organization’ (1995) 10 Intl J of Marine and Coastal L 467, 478; and NOkuwaki, ‘Kokusaikaikyo to Kaiyokankyohogo’ in S Sakamoto (ed), Kokusaikaikyo (Toshindo 2015), p. 111.
42 QIL 76 (2020) 35-58 ZOOM IN may include the prevention or suspension of the transit passage.17 Article 233 is the result of compromises between the States that preferred to en- sure the continued freedom of navigation that was enjoyed before the extension of the breadth of the 12 nautical miles-territorial sea, on the one hand, and those who wished to ensure the exercise of their sover- eignty over the territorial sea, albeit with the obligation to respect the right of transit passage, on the other. It should be noted that at the elev- enth session in 1982, the delegations of States bordering the Straits of Malacca and Singapore held consultations with the major users of those straits and subsequently made a statement regarding the interpretation of Article 233 of the draft convention. It states, as the common understand- ing of the States concerned that ‘the States bordering the Straits may take appropriate enforcement measures, as provided for in article 233’, that ‘such measures may include preventing a vessel violating the required un- der keel clearance from proceedings’, and that ‘such action shall not con- stitute denying, hampering, impairing or suspending the right of transit passage in breach of article 42, paragraph 2, or 44 of the draft conven- tion’.18 In this ‘common understanding’, disagreement among the States concerned regarding the requirement of the under keel clearance (here- after referred to as the ‘UKC’) for the SOMS in the 1970s is particularly evident.19 Noting that ‘[f]rom the understanding, it may therefore be assumed that a breach of the UKC requirement ipso facto threatens major damage to the maritime environment of the Straits’, Caminos and Cogliati-Bantz admit that as far as this common understanding is concerned, there are two views regarding the relationship between Article 42, para 2, and Ar- ticle 233.20 One view is that the ‘common understanding’ is in principle contrary to Article 42, para 2, but as the result of the agreement among States directly interested in the matter, the ‘common understanding’ may constitute an exception in accordance with Article 311, para 2. The other view is that Article 233 constitutes the exception to the general rule of
17 Caminos (n 13) 171-177; Bing Jia (n 9) 160-163; N Oral, ‘Governance and Environmental Protection of Straits Used for International Navigation under UNCLOS’ in J Barret, R Barnes, Law of the Sea (BIICL 2016) 273-278. 18 MH Nordquist et al (eds), United Nations Convention on the Law of the Sea, 1982, A Commentary vol 4 (Brill 1990) 388-389. 19 Please see subparagraph 4.2. 20 Caminos, Cogliati-Bantz (n 14) 288-291.
Transit passage through the Malacca and Singapore Straits 43
Article 42, para 2, and that the measures stated in Malaysia’s declaration are considered to be the example of appropriate enforcement measures.21 At the same time, they note the general applicability of the measures stated in the ‘common understanding’ and state that ‘it is not necessarily the case that the breach of a UKC requirement, if adopted by the IMO, will, as such, be deemed to constitute a threat of major damage to the marine environment of the strait’.22 Bing Jia takes the view that the failure to meet the UKC requirement does not necessarily divert the ship concerned of the right of transit pas- sage, unless the passage causes or threatens major pollution, that ‘the measure of prevention of passage can only be an exception to Articles 42 (2) and 44’, and that the clearance is not ‘a general condition for transit passage’, and that ‘given the situs of Article 233, in the CLOS, the en- forcement measures referred to therein can only be taken on the basis of Articles 216, 218, and 220’, but that ‘the latter contain no provision for the prevention of passage’.23 Okuwaki also takes up the issues relating to the compatibility of Ar- ticle 233 with Article 42, para 2. Among his arguments, the comparison between innocent passage and transit passage in the context of the pol- lution should be noted. He notes that in the case of the innocent passage, an act of wilful and serious pollution contrary to the UNCLOS is enu- merated as one of the activities that deprives the innocence from the pas- sage of a vessel under Article 19, para 2 (h) and the enforcement measures are taken by the coastal State in accordance with Article 220, which sets out the detailed rules for the measures to be taken. By contrast, the States bordering the straits may take appropriate enforcement measures if a for- eign ship has committed a violation of the laws and regulations, by caus- ing or threatening major damage to the marine environment of the straits. He points out that, by accepting that measures can be taken in the case of ‘threatening major damage to the marine environment of the straits’, the scope of the enforcement measures to be taken by the States border- ing the straits might be wider than those to be taken by the coastal State in its territorial sea. He also notes the difference in the expression be-
21 Caminos (n 13) 174-175; Caminos, Cogliati-Bantz (n 14),291. 22 ibid. 23 Bing Jia (n 9) 161-163.
44 QIL 76 (2020) 35-58 ZOOM IN tween Article 220, para 6 (causing major damage or threat of major dam- age to the coastline or related interests of the coastal State, or to any re- sources of its territorial sea or exclusive economic zone) and Article 233 (causing or threatening major damage to the marine environment of the straits).24 Formerly, the protection and preservation of the marine environment was considered to be closely related to the safety of navigation. However, in the current international community, the protection and preservation of the marine environment is argued in various contexts. Under these circumstances, the relationship between the transit passage and the ma- rine environment cannot be discussed only from the viewpoint of the safety of navigation and the prevention, reduction and control of pollu- tion. This shift in approach may have influenced the interpretation of Ar- ticle 233 in relation to Articles 41 and 42. It may be possible to raise the question of whether the scope of Article 42(1) (b) in terms of the protec- tion and preservation of the marine environment is appropriate despite its explicit terms, in relation to the prevention, regulation, and control of pollution.25
3.4. The regime of the straits used for international passage and cus- tomary international law
While all SOMS States are State Parties to the UNCLOS, not all user States are. The United States is not a State Party but admits that the navigational articles generally confirm existing law and practice.26 How- ever, it is not clear to what extent and which part of the respective rules in Part III are considered to be of a customary nature according to the view of the United States. It is necessary to examine sensibly whether and
24 Okuwaki (n 16) 113-115. 25 Okuwaki (n 16) 121-127; H Rusli, R Dremliuga, WI Talaat, ‘Legal Framework on the Marine Environment Protection of Straits used for International Navigation: Has It Been Effective in the Straits of Malacca and Singapore?’ (2016) 9 J of East Asia and Intl L 75. 26 RJ Grunawalt, ‘United States Policy on International Straits’ (1987) 18 Ocean Development and Intl L 445, 451-458, in particular 458.
Transit passage through the Malacca and Singapore Straits 45 to what extent the rules regarding the transit passage, including Article 233, have a customary nature.27
4. International Cooperation in the SOMS before and after the UNCLOS
International cooperation in accordance with Article 43 is imple- mented only in relation to the SOMS.28 In fact, the current mechanism in the SOMS is not one newly established after the adoption of the UNCLOS, indeed the views expressed by the SOMS during the drafting process of the UNCLOS reflected their experiences from the interna- tional cooperation existing in relation to the SOMS. The international cooperation that started in the 1960s to ensure the safety of navigation and the prevention of pollution constituted the basis for the cooperation by agreement in accordance with Article 43. The historical development of the regime for international cooperation before the UNCLOS and fur- ther development which has happened since the coming into force of UNCLOS is explained in this section.
4.1. Establishment of the Malacca Strait Council of Japan
Because of its importance as a sea lane for the maritime transport of energy resources, Japan and Japanese stakeholders had been seriously concerned with the safety of navigation in the SOMS since the 1950s. The changes in maritime transport through the SOMS also need to be noted. The size of tankers has become ever larger since the 1950s and very large crude carriers (hereafter referred to as the ‘VLCC’) started operations in the 1960s. The issues relating to the safety of navigation have become more closely related to the prevention of the pollution of the marine en- vironment. Accurate navigation charts are an essential requirement for the safety of navigation of VLCC. However, the navigation charts used in the 1950s were based on outdated hydrographic surveys conducted by
27 Churchill, Lowe (n 11) 110-113; Caminos (n 13) 178-232; Caminos, Cogliati-Bantz (n 14) 452-472. 28 Oral (n 16) 280; Caminos, Cogliati-Bantz (n 14) 391.
46 QIL 76 (2020) 35-58 ZOOM IN the UK and the Netherlands in the 1930s and they were not drawn up in a unified standard.29 Immediately after the SS Torrey Canyon accident in 1967, the Inter- Governmental Maritime Consultative Organization (IMCO) convened an emergency council meeting in May 1967 and decided to delegate the issue relating to the measures to prevent maritime accidents to its Sub- committee on Safety of Navigation (hereafter referred to as the ‘NAV’).30 In the NAV meetings, Japan and Singapore filed a proposal to implement a TSS. However, it was noted in the NAV report that although the sepa- ration of traffic proposed was acceptable in broad outline and its intro- duction was urgently needed, a TSS could not be recommended for adoption without the necessary hydrographic surveys being performed and the provision of aids to navigation (hereafter referred to as the ‘AtoNs’) having been completed. The report stated that it was desirable that the neighbouring countries should consult with each other and those countries with substantial shipping interests in the SOMS with a view to realizing the completion of the surveys, the dissemination of the data ob- tained and the installation and improvement of AtoNs as necessary.31 In response to stakeholders’ requests to conduct a hydrographic sur- vey and to provide AtoNs in these straits, the Ministry of Transport of Japan considered financing options after consultation with the States bordering the straits and reached its conclusion. On the basis of national budget limitations and the post-war relationships with the States border- ing the straits, the Ministry of Transport, in 1969, decided to establish the Malacca Strait Council (MSC) as a public entity with a financial con- tribution from the Japan Shipbuilding Industry Foundation (JSIF) real- ized by President Sasakawa’s initiative as well as through support from the Japan Maritime Foundation, Japan Shipowners’ Association (JSA), the Petroleum Association of Japan (PAJ), the Japan Shipping Insurance
29 Malacca Strait Council of Japan, Fifty Years of Cooperation, 1969-2019 (2019) 30- 33. 30 Juda points out that the Torrey Canyon accident propelled IMCO to direct its attention to the problem of ocean pollution, L Juda, ‘IMCO and the Regulation of Ocean Pollution from Ships’ (1977) 26 ICLQ 558, 562. 31 See above (n 29) 33-34.
Transit passage through the Malacca and Singapore Straits 47
Association and the Shipbuilders’ Association of Japan in order to con- duct various projects in these straits in close collaboration with the Japa- nese government.32
4.2. Cooperation through the MSC at the initial stage (1969-1981)
The cooperation through the MSC at the initial stage focused on the cooperative execution of hydrographic surveys and the preparation of acute navigation charts, which were made with common geodetic datum reference points. The risk and concern that accidents involving VLCC’s would cause major pollution meant that measures for the safety of navi- gation were the principal concern of the SOMS States and the introduc- tion of the TSS and the decision in relation to the UKC were the principal issues of concern for the safety of navigation in the 1970s. At that time, the hydrographic survey continued to be conducted and the navigation charts were not yet available.33 The work regarding the hydrographic sur- vey and the preparation of the navigation charts was completed in 1981. The International Chamber of Shipping (ICS) formed a working group in 1969 to consider a provisional TSS in the SOMS and associated cap- tains of the ICS members devised a draft plan and submitted it to IMCO- NAV. Many States, including Japan and the United States, took the view that conducting a hydrographic survey and installing important AtoNs must have been undertaken prior to the introduction of a TSS while other States, such as the Soviet Union and Norway, preferred immediate action for the introduction of a provisional TSS. The IMCO-NAV in 1969 con- firmed that the hydrographic survey was a prerequisite, but the idea of a provisional TSS would be forwarded by the IMCO-NAV to the member States for consideration. From then on, the negotiations for the TSS pro- gressed slowly.34 In the negotiations during the 1970s, the introduction of the TSS was treated as a matter closely related to the issue of the UKC, regarding which States concerned took different views. In 1973, the senior officials
32 ibid 34. 33 Other measures for the safety of navigation are as follows: Joint observation of tide and current, Development and maintenance of AtoNs; Procurement and donation of a buoy tender vessel; and Removal of shipwrecks, ibid 36-49. 34 ibid 36-37.
48 QIL 76 (2020) 35-58 ZOOM IN committee of the three SOMS States confirmed that the decision to im- plement the UKC and the introduction of the TSS for SOMS was re- quired, but agreement among the SOMS States was only reached for the first time in the high-level meeting of those three States held in December 1976 after the Showa Maru accident in January 1975.35 The introduction of the TSS was proposed to the IMCO and was adopted in the 10th Gen- eral Assembly Meeting of the IMCO in 1977. Subsquently, the efforts to fulfil the necessary conditions for the TSS meant that the three-zone TSS was finally established and implemented in May 1981.36 In the same pe- riod that the negotiations were ongoing regarding the TSS and the UKC, twenty-two AtoNs were procured and donated by the MSC to Indonesia (nineteen) and Malaysia (three).37 The Showa Maru accident also resulted in the establishment of the Revolving Fund to Mitigate Oil Pollution of the Marine Environment (Revolving Fund). The Fund of JPY 400million was raised through do- nations of JPY 300 million from the JSIF and JPY 50 million each from the JSA and the PAJ.38 In 1977, the SOMS States established the Tripartite Technical Expert Group (TTEG) as a platform for decision-making and project coordina- tion in the SOMS. The MSC has participated in the TTEG as the sole observer.39 It is possible to say that the cooperative activities between the SOMS States and the MSC between 1969 and 1981 served as the basic frame- work for the safety of navigation in these straits and for the further en- hancement of cooperation at the subsequent stages.40
35 The grounding of the Showa Maru in the Indonesian waters of the Strait of Singapore near Buffalo Rock in January 1975 and this accident caused a devastating oil spill of more than 3,000 tonnes of crude oil, ibid 46-49. In 1975, the interested States finally agreed that the UKC should be 3.5 metres
Transit passage through the Malacca and Singapore Straits 49
4.3. Completion of the initial steps and responses to the changing en- vironment (1981-1998)
(i) Further change of the circumstances
In the late 1980s and 1990s, the circumstances of the SOMS further changed. The economic growth of the Asian economies was significant and maritime transport through the SOMS became a matter of concern not only to Japan, but to other States, since the SOMS had become bus- ier. While 44,000 vessels had passed through in 1983, 100,000 passed through in 1993. In addition to the increase of the vessels passing there, the number of vessels entering into various ports and harbours, crossing the straits, or engaging in fishing there had also increased.41 In addition to the factual situation, the UNCLOS was adopted in 1982 and entered into force in 1994. After completing the initial steps for the safety of navigation in 1981, in July of the same year, the Transport Policy Council of the Ministry of Transfer of Japan adopted a report titled ‘The Comprehensive Transport Policy with a Long-Term Outlook’, and decided to enhance its policy of pursuing assistance with the safety of navigation in the SOMS.42 In 1992 and 1993, the following two serious accidents including a collision and oil spill involving VLCCs occurred respectively: namely the Nagasaki and the Maersk Navigator. After these accidents, the Ministry of Transfer of Japan and the MSC considered that further measures were required to be taken to ensure the safety of navigation and to prevent marine pollution in the SOMS. Following the adoption of the Conven- tion on Oil Pollution Preparedness, Response and Cooperation on 30 November 1990, the government of Japan, in conjunction with the Nip- pon Foundation and JSA, implemented a cooperation project named Oil Spill Preparedness and Response in Asia (OSPART Project) in Novem- ber 1990, aiming at enhancing the region’s capacity to respond to major oil spill incidents in ASEAN States. Its implementation plan, finalized in May 1993, included provisions for facilities to combat oil spills, such as
41 See above (n 29), 62-63. 42 Ibid., 50-51.
50 QIL 76 (2020) 35-58 ZOOM IN providing oil skimming devices, oil tanks and dispersants, and an infor- mation network system.43
(ii) Second hydrographic survey
The second hydrographic survey was convened during this time. Alt- hough the hydrographic survey was completed in 1981, vessels navigating these straits occasionally reported that they had come across unidentified shipwrecks, unreported shallow waters, as well as increased risks from low visibility caused by bad weather and haze. The SOMS States reiter- ated the need for the second round of hydrographic surveys to enable a comprehensive extension of the TSS to enhance safety of navigation fur- ther. The project of the second hydrographic survey was submitted to the Japan International Cooperation Agency (JICA). In June 1994, thanks to strong advocacy by Malaysian Prime Minister Mr. Mahathir Mohamad, the project was adopted. The preparation for the second-round hydro- graphic survey commenced in January 1995 and the survey was con- ducted between October 1996 to January 1997. Based on the data col- lected from this survey, the Malacca and Singapore Straits Electronic Navigation Chart (MSS-ENC) was processed and provided new oppor- tunities to dramatically improve navigation technology.44
(iii) Expansion of the TSS
Following the completion of the second hydrographic survey, upon the request of the SOMS States, further discussion took place at the IMO and additional measures, including the extension of the TSS, were adopted at the 69th MSC-IMO held in May 1998. In addition to the com- pletion of the second hydrographic survey, the AtoNs were upgraded. It should also be noted that the Vessel Traffic Service Centres in Malaysia and Singapore were established and the Mandatory Ship Reporting Sys- tem in the Straits of Malacca and Singapore (STRAITREP), which was
43 ibid 51-52. 44 ibid 53-54.
Transit passage through the Malacca and Singapore Straits 51 one of the measures indicated by the 69th MSC-IMO of 1998, was intro- duced.45 As of December 1998, the comprehensive TSS spanned 500 kil- ometres from One Fathom Bank to Horsburgh. The measures adopted in the 69th MSC-IMO facilitated the implementation of the TSS and the maintenance of the safety of navigation. During this period, other measures, including the procurement and donation of buoy tender vessels to Malaysia and Indonesia and efforts to further develop cooperation in capacity building, were promoted. The provision, replacement, and maintenance of the AtoNs were also contin- ued. It should be noted that despite these measures, serious accidents, such as the collision of Orapin Global and Evoikos (Evoikos case), still occurred and caused serious oil pollution. In the Evoikos case, in accord- ance with Singapore’s Marine Emergency Action Procedure (MEAP), all the MEAP parties were immediately activated and took swift action to combat what had the potential to be a massive oil spill. The Japanese Coast Guard sent an emergency rescue team and other facilities to help in the clean-up. Thanks to the measures swiftly taken, the navigation of other vessels was not affected and the damage to the environment was successfully controlled without affecting any sensitive areas. This experi- ence is considered to reflect both the seriousness of the risk of accidents and the effectiveness of a swift coordinated response in the event of an accident.46
4.4. Cooperative Mechanism (1999-2008)
(i) Establishment of the Cooperative Mechanism
In response to Article 43 of the UNCLOS, the States concerned found it necessary to adjust and change the existing mechanism between the TTEG and Japan to that of the cooperation between the user States and the SOMS States.
45 Resolution MSC.73(69), adopted on 19 May 1998, MSC 69/22/Add.1. In the 69th MSC-IMO, the following measures were also adopted: Improvement of the existing AtoNs and install ten new ones; Introduction of the Inshore Traffic Zone (ITZ); Revision of the ‘Rules for Vessels Navigating through the Straits of Malacca and Singapore’; Introduction of the Mandatory Ship Reporting System in the Malacca and Singapore Straits (STRAITREP) see above (n 29) 57. 46 ibid 59-60.
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Because of the economic growth of Asian States during 1990s, more user States in addition to Japan have become involved in maritime transport through the SOMS. The SOMS States, Japan and the IMO had begun to work together to solicit the involvement of user States and user organizations to bring together a more cooperative international scheme to protect the safety and environment of the SOMS. Despite the efforts of the TTEG, Japan and the IMO, the other user States did not respond positively to the attempts to establish a new burden-sharing regime.47 After the September 11 attack in the USA, the attitude of user States changed significantly. The SOMS was one of the most important choke- points for global oil transport and the potential risks of the region be- coming a target for terrorism and piracy sparked a sense of emergency in high-ranking officials worldwide. The States became increasingly con- cerned with issues relating to terrorism. The change of attitude by the user States could be seen in the Meeting in September 2005 convened by the SOMS States in conjunction with the IMO. Thirty-four States and eight other international organizations participated in it. In March 2006, TTEG held a meeting in Singapore, which fourteen States, including Ja- pan, China, South Korea, and the United States, and international organ- izations, such as the IMO, the ICS, the INTERTANKO, the MSC and the Nippon Foundation all participated. As far as the measures to be taken against piracy, the Regional Cooperation Agreement on Combating Piracy and Armed Robbery against Ships in Asia (ReCAAP) was adopted in 2004 and entered into force on 4 September 2006 as an international mechanism to be distinguished from the regime for the safety of naviga- tion in the SOMS.48 Following the September 2006 IMO meeting in Kuala Lumpur, the September 2007 IMO meeting was attended by fifty States, including Ja- pan, China, South Korea, the United States and Australia, as well as eight- een organizations, including the IMO, the IHO, the IALA, the ICS, the INTERTANKO, the ASF, the MSC and the Nippon Foundation. They reached an agreement to launch the Cooperative Mechanism comprised of the Cooperation Forum, the Project Coordination Committee, and the Aids to Navigation Fund.49 Caminos and Cogliati-Bantz point out the
47 ibid 62-64; Caminos, Cogliati-Bantz (n 14) 394-396. 48 ibid 64-65. For the activities under the ReCAAP, see
Transit passage through the Malacca and Singapore Straits 53 flexibility of the Cooperative Mechanism and the problems which the Mechanism has faced.50
(ii) Basic structure of the Cooperative Mechanism
Under the Cooperative Mechanism, the Cooperation Forum (CF) was established as the main platform for user States, the shipping indus- try, and other stakeholders who are invited, to meet, and conduct open discussions with the SOMS States in order to promote general dialogue and exchange views on issues of mutual interest in the SOMS. Since its establishment, the CF has played a role as the platform for international cooperation. The principal agenda of the CF are the issues arising in re- sponse to the new technology and development in the shipping industry, including E-navigation, next-generation navigation systems, cyber secu- rity, prevention and preparedness for controlling marine pollution, prac- tical approaches to protecting the marine environment, and sustainable shipping.51 The Project Coordination Committee (PCC) is comprised of the SOMS States and project sponsors. The PCC enables project sponsors to retain active roles in the overall planning and implementation of their projects. By 2018, ten authorized projects have been completed and three remain ongoing. All those projects closely deal with issues relating to the safety of navigation and the protection of the marine environment.52 The Aids to Navigation Fund (ANF) consists of representatives from the SOMS States, as well as specially invited contributors and is in charge of administering the funds for the replacement and maintenance of criti- cal AtoNs in the SOMS. Being different from the CF and the PCC, the ANF’s activities are based on financial contributions and only the States and other entities who voluntarily contribute to the fund are entitled to participate in this Committee.53
50 Caminos, Cogliati-Bantz (n 14) 396-402. 51 See above (n 29) 66-68. 52 ibid 66. 53 Regarding the ANF’s function, the SOMS States estimated a necessary budget of approximately JPY 300 billion over the ten years. Japan, South Korea and the United Arab Emirates announced their intentions to provide funds to the ANF. The Nippon Foundation announced their willingness to provide one third of the total funds required over the first five years after the establishment of ANF. The other Japanese stakeholders,
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The TTEG has contributed to cooperation in the SOMS since its es- tablishment in 1975 and has started a new function in facilitating the co- operation by the user States and user organizations CF, the PCC, and the ANF of the Cooperative Mechanism.54
4.5. Third joint hydrographic survey
While the SOMS has strong tides and currents that constantly alter the sea bottom by modifying the sand wave formations, conducting hy- drographic surveys is not a responsibility which falls within the scope of the function of the Cooperative Mechanism. Recommendations were to conduct hydrographic surveys once every ten to fifteen years. In 2006, the MEH project was initiated by the SOMS States and the IMO by mak- ing use of the World Bank’s financial support. However, the implemen- tation of the survey was delayed until 2010 and the results were not suf- ficient to prepare for the high-resolution navigation charts. Because of these unsatisfying results, the SOMS States informally approached the MSC to seek cooperation on an urgently required hydrographic survey in four (later extended to five) areas for MEH in 2013. After consultation with the Ministry of Land, Infrastructure and Transport of Japan (MLIT), the JSA and the JHA, the MSC announced that it would provide JPY 35 million in financial support plus in-kind technical cooperation, with JPY 20 million coming from JSA, 5 million from JHA, and 10 mil- lion from the MSC.55 The Japanese government decided to conduct the survey as a joint project between the SOMS States. The joint hydrographic survey of five areas would be called Phase I, while the joint survey in the remaining shallow waters in the TSS would be Phase II. Japan provided USD 320,000 (JSA, Japan Hydrographic Association (JHA), and the MSC) for
including the JSA, decided to provide their financial contributions to the ANF through the MSC. South Korea and the UAE followed this up by offering to contribute USD 100,000 respectively. Greece expressed its intention to contribute USD 1 million to the ANF with a view to possibly supplementing IMO’s initiative on the Marine Electronic Highway (MEH). The Middle East Navigation Aids Service expressed its intention to contribute USD 1 million toward the replacement and maintenance of AtoNs (Caminos, Cogliati-Bantz (n 14) 67-68). 54 ibid 68. 55 ibid 81-86.
Transit passage through the Malacca and Singapore Straits 55
Phase I, which was conducted in Singapore in October 2015, Indonesia in November 2015, ad Malaysia in December 2015 by the competent au- thorities of the respective State with technical staff from JHA or MSC on board the survey vessel. The MSS-ENC was published in November 2016. Phase II was financed by the Japan-ASEAN Integration Fund (JAIF). The JAIF provided USD 9.68 million. The survey was conducted by a Japanese company selected through a competition, while the SOMS States provided observers, data processing, tide and current observation, and revision of the updated electronic navigation chart with new data. Phase II was implemented from 2018 to 2019.56
5. From prevention, regulation, and control of pollution to the protection and preservation of the marine environment?
At the time of the Third United Nations Conference on the Law of the Sea, the main concern regarding the protection and preservation of the marine environment was of the prevention, regulation, and control of marine pollution. Therefore, the combination of measures for the pre- vention, regulation and control of marine pollution, closely combined with those for ensuring the safety of navigation were considered to be the principal objects of Articles 42, para 1(a) and (b). However, since the turn of the century, issues relating to the protection and preservation of the marine environment have not been restricted to measures for the pre- vention, regulation and control of marine pollution and the general obli- gation to protect and preserve the marine environment under Article 192 and a greater focus has been placed on the protection and preservation of the fragile marine ecosystem.57 The creation of a particularly sensitive
56 ibid. 57 In the South China Sea Arbitration, one of the issues on the merits was the legality of China’s conduct in relation to the fishing activities of the fishing vessels flying the Chinese flag. The Arbitral Tribunal supported the findings and stated that ‘Article 192 entails the positive obligation to take active measures to protect and preserve the marine environment, and by logical implication, entails the negative obligation not to degrade the marine environment’ South China Sea Arbitration (Republic of Philippines v China) (Award of 12 July 2016) para 941. It also supported the findings of the Arbitral Tribunal in the Chagos Marine Protected Area Arbitration, stating that ‘the phrasing of Article 194(5) confirms that Part XII is “not limited to measures aimed strictly at controlling marine pollution,” which while “certainly an important aspect of environmental
56 QIL 76 (2020) 35-58 ZOOM IN sea area (hereafter referred to as the ‘PSSA’) under the IMO reflects the increasing concern about the negative impacts of navigation on the ma- rine environment. PSSAs have been created in straits used for international navigation. The IMO Marine Environment Protection Committee (MEPC) desig- nated the Great Barrier Reef as the world’s first PSSA in 199058 and as- signed the Torres Strait region as a part of this PSSA in 200559. The MEPC also designated the Bonifacio Strait as a PSSA in 2011.60 In the Torres Strait, mandatory pilotage was introduced in 2006.61 In the Strait of Bonifacio, while pilotage is voluntary, the mandatory ship reporting system has been established.62 In their Application to extend the Great Barrier Reef PSSA to the Torres Strait in 2003, 63 Australia and Papua New Guinea suggested to the MEPC the extension of the Great Barrier Reef compulsory pilotage regime system to the Torres Strait as one of the two associated protective measures. Australia justified the compulsory pilotage by arguing that the expressed practice is not to attempt enforcement while an offending ship is on passage, but to enforce only when that ship subsequently enters an Australian port and the sovereign immune vessels are excluded from its
protection […] is by no means the only one”’ (ibid para 945). The Tribunal points out that ‘Articles 192 and 194 set forth obligations not only in relation to activities directly taken by States and their organs, but also in relation to ensuring activities within their jurisdiction and control do not harm the marine environment’ (ibid para 944). It also noted the importance of the duty of cooperation for the prevention of pollution of the marine environment and the significant role of the rules relating to monitoring and environmental assessment (ibid paras 946-947). 58 Resolution MEPC.44(30) adopted on 16 November 1990 – ‘Identification of the Great Barrier Reef as a particularly sensitive sea area’. 59 Resolution MEPC.133(53) adopted on 22 July 2005 – 'Designation of the Torres Strait as an Extension of the Great Barrier Reef Particularly Sensitive Sea Area’. In 2015, the MEPC designed the south-west part of the Coral Sea as an extension to the Great Barrier Reef and Torres Strait PSSA (see Resolution MEPC.268(68)). 60 Resolution MEPC.204(62) adopted on 15 July 2011 – ‘Designation of the Strait of Bonifacio as a Particularly Sensitive Sea Area’. 61 See
Transit passage through the Malacca and Singapore Straits 57 application and may choose to use the pilotage system on a voluntary ba- sis.64 Australia takes the view that by these measures, the compulsory pi- lotage may not conflict with the regime of the transit passage under the UNCLOS.65 While the most important justification for the compulsory pilotage is the unique and extremely fragile nature of the marine environ- ment in the Great Barrier Reef including the Torres Strait, Bateman and White point out that those who oppose this system are concerned with the impact of this system as a precedent.66 Beckman examined the com- patibility of the compulsory pilotage of the Torres Strait with the relevant provisions of the UNCLOS and reached the conclusion that ‘the provi- sions of the UNCLOS cited by Australia do not support the position that its regulations establishing a system of compulsory pilotage in the Torres Strait are consistent with UNCLOS’.67 In fact, there are some authors that argue the possibilities for the in- troduction of compulsory pilotage for the SOMS.68 It is reported that having been uploaded on 30 April 2020, that the circular SN.1-Circ. 338 ‘informs international organizations and the maritime community that the Voluntary Pilotage Service (VPS) had been implemented’ in the SOMS on 1 January 2019 and ‘was provided by the pilots “certified by the respective authority in each of the three Littoral States of the Straits”’.
64 S Bateman, M White, ‘Compulsory Pilotage in the Torres Strait: Overcoming Unacceptable Risks to a Sensitive Marine Environment’ (2009) 40 Ocean Development & Intl L 198; Lieutenant Commander JB Womble, ‘Freedom of Navigation, Environmental Protection, and Compulsory Pilotage in Straits Used for International Navigation’ (2012) 61 Naval Rev 134, 147-150. 65 Australian Navy, ‘Semaphore: Compulsory Pilotage in the Torres Strait’
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The SOMS States adopted the guidelines on the implementation of pi- lotage services at the TTEG in 2006.69 Although such pilotage is not man- datory, this VPS system may contribute to the safety of navigation in the SOMS.
6. Concluding remarks
It is possible to say that the international cooperation among the SOMS States, Japan and the IMO before the adoption of the UNCLOS constituted the fundamental basis for the mechanism in accordance with Part III of the UNCLOS. The Cooperative Mechanism has served as the principal framework for cooperation between the SOMS States and the user States and it is undoubted that the increasing participation of user States enhances this mechanism. However, it should also be noted that the mechanism does not cover all the measures required to ensure the safety of navigation and the prevention, regulation, and control of marine pollution. The hydrographic surveys are undertaken independently from the Cooperative Mechanism. There may also be further room for discus- sion in relation to the scheme of burden sharing for the safety of naviga- tion in the SOMS. Moreover, the new development of the notion of the protection and preservation of the marine environment may influence the approach of the Mechanism in the future. Further enhancement of the cooperation and exchange of views among States concerned and the IMO is therefore required to ensure the appropriate function of the re- gime of Part III of the UNCLOS.
69 ‘Malacca Strait Voluntary Pilotage Guidelines Officially Circulated by IMO’ (5 May 2020) The Jakarta Post